Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge.
Donald H. Greene, Portland, argued the cause for appellants. On the brief was Ernest J. Burrows, Portland.
Edwin J. Peterson of Tooze, Kerr & Peterson, Portland, argued the cause and filed a brief for respondents.
In Banc.*fn* McAllister, J.
This is a declaratory judgment proceeding for a determination of the respective rights of the plaintiffs and the defendants in a driveway located between their homes. The trial court tried the case as a suit in equity and found that both plaintiffs and defendants owned an undivided one-half interest in the driveway with reciprocal, co-equal easements to use the driveway. Defendants appeal.
Plaintiffs own the south forty feet of Lot 7, Block 3, Hawthorne Terrace in Portland. Defendants own Lot 6, Block 3, which adjoins plaintiffs' property on the south. In 1920 one Bell owned lot 7 and one Norby owned lot 6. On March 4, 1920, Bell and Norby entered into an agreement for construction of the driveway between their properties, which reads as follows:
"THIS AGREEMENT, Made and entered into this 4th day of March, 1920, by and between G B Bell hereinafter known as the party of the first part and W A Norby hereinafter known as the party of the second part, both of said parties residing in
Portland, Multnomah County, State of Oregon, Witnesseth: That,
"WHEREAS the said party of the first part is the owner of Lot Seven (7) in Block Three (3) and the said party of the second part is the owner of Lot Six (6) Block Three (3) both in Hawthorne Terrace as heretofore platted and as the same appears of record in said Multnomah County, Oregon, and
"WHEREAS each of said parties are desirous of building, constructing and maintaining a Driveway to be on the dividing line between both lot 6 and 7, and also to take a portion of said lot 6 and 7 to run from the street into and connecting with the several Garages in the rear of said Lots owned by each of said respective parties herein.
"NOW THEREFORE, it is understood and agreed by and between the above named parties, that each of said parties are to pay one half of all expenses to be incurred in constructing and building said Automobile Driveway on said premises and each are to own an undivided one half interest in and to the same, and to the whole thereof; and in the event that at any time hereafter either of said parties desire to sell their respective piece of property hereinabove named and described, that the Driveway connected therewith shall belong one half to Lot 6 and the other half to Lot 7 Block 3 Hawthorne Terrace, and each of said parties herein waive any right, title or interest in and to the ...